Ivette Campos v MACA Mining Pty Ltd - [2022] FWC 3129

[2022] FWC 3129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ivette Campos
v

MACA Mining Pty Ltd

(C2022/7034)

DEPUTY PRESIDENT BEAUMONT

PERTH, 9 DECEMBER 2022

Application to deal with contraventions involving dismissal

Introduction

Ms Ivette Campos (the Applicant) has made a general protections application involving dismissal under s 365 of the Fair Work Act 2009 (the Act). The Respondent to this application is MACA Mining Pty Ltd (the Respondent). The matter was allocated to Chambers on 16 November 2022.

The Respondent objected to the application on the ground that the Applicant had not been dismissed but voluntarily resigned from her position on 28 September 2022. The Applicant contended that she was forced to resign due to a course of conduct engaged in by the Respondent and that her resignation was verbal and was subsequently retracted.

Section 365 of the Act outlines when the Commission can deal with a general protections application involving dismissal. As a starting point, it requires that the person has been dismissed.

On receiving the application, the Commission is obliged to deal with this type of dispute other than by arbitration.[1] It may do this by mediation, conciliation or by making a recommendation or expressing an opinion.[2] However, if there is a dispute about whether the applicant has been dismissed, the Commission must first determine that point before it can deal with the application further.[3]

The matter was programmed for hearing to determine whether the Applicant was dismissed. However, the Applicant failed to comply with the directions issued and the Respondent applied for the application to be dismissed. I have acceded to the Respondent’s request.

In making the decision to dismiss the application, I have considered the Applicant’s position and that of the Respondent, to ensure the decision is both fair and just. Given the circumstances, I am satisfied that I should exercise my discretion under s 587(1) of the Act and dismiss the Applicant’s application to deal with contraventions involving dismissal.

The application is therefore dismissed and an Order[4] is issued to this effect. My reasons follow.

Background

Because there was a dispute about whether the Applicant had been dismissed, on 16 November 2022, a notice of listing was issued for a telephone conference to be held on 21 November 2022, at 10:30AM. The purpose of the conference was to inform the parties of the next steps in light of the Respondent’s jurisdictional objection and thereafter program the matter.

Having explained in detail what was required of the parties in the conference on 21 November 2022, directions were issued at 1:07PM on that same day with respect to the filing of materials.

On 28 November 2022, the Respondent filed its materials in accordance with the directions of 21 November 2022.

However, whilst the Applicant’s materials were to be filed by no later than 4:00PM on 5 December 2022, no materials were received by Chambers within that timeframe.

Consequently, directions were issued to the parties on 6 December 2022 at 8:47AM,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 3129
Decision Date: 9 DECEMBER 2022

CaseChat Overview and Summary

In this matter, Ivette Campos (the Applicant) lodged an application with the Fair Work Commission under s 365 of the Fair Work Act 2009, alleging that she had been dismissed by MACA Mining Pty Ltd (the Respondent). The Respondent objected to the application on the basis that the Applicant had not been dismissed but had instead voluntarily resigned. The Applicant argued that she was forced to resign due to a course of conduct engaged in by the Respondent and that her resignation was verbal and subsequently retracted. The matter was set to be heard, but the Applicant failed to comply with the directions issued by the Commission, leading to the Respondent's application for the dismissal of the Applicant's case.

The central legal issue the court had to decide was whether the Applicant's application should be dismissed for want of prosecution under s 587 of the Fair Work Act 2009. This required the court to consider the Applicant's non-compliance with the directions, her reasons for the non-compliance, and whether her application had any reasonable prospects of success.

The court found that the Applicant had not complied with the directions to file her materials by the specified deadline and had not sought an extension prior to the deadline. The Applicant's reasons for non-compliance, which included her witness being away due to work, did not adequately explain why her own witness statement, submissions, or other documents had not been filed. The court also noted that the Applicant had ample opportunity to seek an extension of time in which to file her materials but failed to do so. The court concluded that the Applicant's disregard for the directions compromised the timetable of the matter and placed the listing date in jeopardy. Given these circumstances, the court exercised its discretion under s 587(1) of the Act and dismissed the Applicant's application for want of prosecution.

The court issued an order dismissing the Applicant's application and noted that the decision was made to ensure fairness, justice, equity, and good conscience in the proceedings.

Orders